The Saudi Arms Export Case

Yesterday, the High Court delivered judgment in a case brought by the Campaign Against Arms Trade against the Secretary of State for International Trade.

Over the last two years, Saudi Arabia has spearheaded an international military coalition in Yemen. The band of nine nations responded to a call for military aid by President Hati of Yemen after Houthi rebels occupied the capital city of Sana’a and its surrounding territory in early 2015. At the heart of the case before the High Court lay the decision of the Secretary of State not to suspend arms export licenses to Saudi Arabia in light of the violations of the laws of war which were alleged to have been perpetrated by the Coalition during the conflict.

If a company wishes to export arms from the UK it must first obtain a license to do so from the Export Control Organisation (ECO). Today, the ECO is an arm of the Department for International Trade, headed by the Secretary of State. This framework was developed after the 1997 Labour Manifesto pledged:

[N]ot [to] permit the sale of arms to regimes that might use them for internal repression or international aggression [and to] increase the transparency and accountability of decisions on export licenses for arms. And … support an EU code of conduct governing arms sales.

In October 2000, the Government adopted the Consolidated Criteria – a policy echoing the EU Code of Conduct on Arms Exports. It contained eight criteria for the ECO to consider before granting licenses.

The Applicant relied, specifically, on Criterion 2c which stipulates:

[An official will not] grant a license if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law.

In addition, the Applicant drew attention to the ‘suspension mechanism’. The mechanism is designed to allow the Government “quickly to suspend the processing of pending license applications to countries experiencing a sharp deterioration in security or stability”.

Drawing on the above, the Applicant contended that the Secretary of State:

Failed to ask the correct questions and make sufficient enquiries when conducting its Criterion 2c assessment;

Failed to apply the ‘suspension mechanism’ when it should have done; and

Could not rationally have concluded that Criterion 2c was not satisfied in the instant case.

Lord Justice Burnett and Mr Justice Haddon-Cave note fairly early on that the “evidence presented [was] voluminous”. It is also fair to say that the evidence, at times, makes for harrowing reading. The decision is replete with reports by the United Nations, the European Parliament, Amnesty International and numerous other organisations, detailing “systematic indiscriminate attacks … on hospitals, schools and mosques” and the wanton destruction of people “going about their daily activities”. Many of the reports also detail allegedly deliberate attacks on “warehouses, fishing boats and other civilian infrastructure”.

The United Nations overall casualty figure for the period from March 2015 to September 2016 includes 10,963 civilians, 4,014 of whom perished.

Perhaps the most compelling evidence provided by the Applicant emanated from our own legislature. In September 2016, the House of Commons Business Innovation and Skills and International Trade Committees published a joint report which concluded:

In the case of Yemen, it is clear to us that the arms export licensing regime has not worked. We recommend that the UK suspend licenses for arms exports to Saudi Arabia, capable of being used in Yemen.

The report was based on the same evidence which fuelled the Applicant’s case, including information – later confirmed by Saudi Arabia – that UK-made cluster munitions had been used during the conflict.

The Secretary of State, conversely, relied heavily on evidence of process rather than substance.

The Court accepted early on that the Criterion 2c assessment involved the Secretary of State drawing on advice from an array of sources and expertise. As a result, his assessment was entitled to “great weight” and the Applicant was restricted to making an ‘irrationality’ argument. The question for the Court, therefore, was whether the decisions under challenge were so unreasonable that no reasonable Secretary of State could have made them.

Tellingly, Lord Bingham once characterised those pursuing irrationality arguments as having “a mountain to climb”.

In evidence, the Secretary of State drew attention to the close liaison between various departments and arms-length organs which regularly produced international humanitarian law updates on the Yemeni conflict. The Court made clear that this system bore “all the hallmarks of a rigorous and robust, multi-layered process of analysis”. It was also moved by evidence that Saudi officials hoped to improve their own procedures. This included, importantly, the creation of JIAT – a permanent body made up of civilian and military experts and designed to investigate alleged violations of the laws of war.

Based on the above evidence, the Court ruled against the Applicant on all three grounds.

The decision has already generated an abundance of media commentary. In The Brief this morning, the headline reads as follows:

The statement is more than a little misleading.

While the judgment does indeed include the phrase “the Coalition were not deliberately targeting civilians”, it is prefaced, crucially, by the words “the open and closed evidence demonstrates that the Secretary of State was rationally entitled to conclude as follows …” (my emphasis). Indeed, the Judges made clear early on that their role was not to determine whether or not Saudi Arabia was operating contrary to international law. Rather, they were examining the process by which the Secretary of State came to his decision and whether or not it was reasonable for him to do so.

In the Court’s own words:

[I]n an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments.

The decision will nonetheless come as a blow to those pushing against the arming of Saudi Arabia. But it is not all bad news for the campaigners. As Rachel Sylvester notes in The Times today, the Judges did conclude that there was a “substantial body of evidence suggesting that the Coalition committed serious breaches of international humanitarian law”. The Campaign Against the Arms Trade has also indicated that it intends to appeal the decision.

Much like the war in Yemen, it appears that neither the legal battle nor the campaigns against Saudi Arabia’s military endeavours are over.